Legal Technology

Lawyers must take reasonable steps to protect client info in US border searches, ethics opinion says

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Lawyers should take reasonable measures to avoid disclosure of client data in the event U.S. border agents search electronic devices, according to an ethics opinion by the New York City Bar. And if confidential or privileged material is disclosed, lawyers will have to notify affected clients.

The reasonable precautions that should be taken in advance will vary based on factors such as the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty of implementing safeguards, the July 25 opinion says. At the border, lawyers should take reasonable measures when an agent seeks to search a device with confidential information, including making an attempt to dissuade the agent, the opinion says.

The ethics opinion appears to be the first to address the topic, Bloomberg BNA reports.

The simplest precaution is not to carry any confidential information across the border, the opinion says. Other options might include carrying a blank “burner” phone or laptop computer, securely removing confidential information from devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on devices, and using encrypted software.

At the border, if an agent seeks to search an electronic device containing confidential data pursuant to a claim of lawful authority, the lawyer should take reasonable measures to prevent disclosure, the opinion says. Those steps include informing the border agent that the device contains privileged or confidential files, requesting that the materials not be searched or copied, and asking to speak to the agent’s superior. The lawyer should also carry proof of bar membership to bolster privilege claims.

Lawyers should also consider bringing printed copies of a custom agency’s policies or guidelines on border searches, the opinion says. Agents told of a legal confidentiality or privilege claim are required to seek an additional review, according to regulations adopted by U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection. According to the guidelines, the agent should seek further review to the extent the agent suspects the confidential material may constitute evidence of a crime or pertain to matters within the agencies’ jurisdiction.

“Although it is uncertain how border agents apply this ‘suspicion’ standard in actual searches,” the ethics opinion says, “attorneys should take advantage of this possible avenue for preventing the disclosure of clients’ confidential information.”

Finally, if confidential information is seized or reviewed during a border search, clients affected should be promptly notified, the opinion says.

See also:

ABA Journal: “The ABA urges Homeland Security to revise procedures for searching lawyers’ electronic devices” “ABA expresses concern about border searches of lawyer laptops and other electronic devices”

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